Welcome to the third instalment of my blog on Liberty Protection Safeguards (LPS), from an advocacy service managers perspective. If you haven’t read my first two pieces, please take a look; they give an introduction to me, my connection with deprivation of liberty issues and why they are important. They also run through some of the things highlighted in the Department for Health and Social Care (DHSC) updates. In a nutshell, the purpose of my blog is to try and keep the momentum and discussion of LPS alive as we head towards a new April 2022 start date.

I don’t know about you but for me, time in the pandemic seems to be flowing differently. The anniversary of the start of the pandemic in terms of national lockdowns took place in March and we are now already seeing the 12 month countdown to LPS implementation in April 2022. Time seems to be dragging on forever and yet also going past at an amazing speed all at the same time. This is quite a precarious position to be in, especially for those of us in health and social care who have been ploughing on throughout the pandemic. I hear a lot of people talking about fatigue and the difficult impact of the most recent lockdown in particular. Combined with this strange pandemic time warp we find ourselves in, motivation and the energy to plan for something as significant as LPS can be impacted but before you know it, April 2022 will be here!

I was pleased to see a number of webinars in April to discuss LPS and what we know so far. Social Care Institute Excellence (SCIE) did a two hour piece on 26th April 2021. Take a look at their website where you might be able to watch it back. Having listened to this webinar, there was a poll about how people felt about LPS coming in and only 29% were positive about the opportunity for change and the rest were either uncertain or thought it was negative. My suggestion for those on the more uncertain position is to talk about it with your colleagues, attend webinars, read blogs and try to absorb as much information as possible and keep your fingers crossed that the code of practice gives us the guidance that we are all hoping for!

A useful resource you can use going forward is the DHSC LPS document collection page. This page is updated regularly and covers things like ministerial announcements, LPS national steering group meeting summary, the impact assessment and factsheets as well as some other guidance about deprivation of liberty and the Mental Capacity Act during the pandemic.

So thinking about the timelines for LPS: I mentioned in my last blog that a revised impact statement was due in autumn 2020 and this was published on 29th January 2021. The next big thing, and perhaps the most important opportunity when thinking about getting information about what LPS will look like and to be involved in shaping this going forward is the consultation which was said to take place in spring 2021. So here we are in May 2021 and I’ve not seen any signs of this being on the horizon. I have however seen hail and snow in the last few days! From conversations with people I understand that the government’s view of spring could go as late as June or even July. It has been said that the consultation will last 12 weeks and this means that even if the consultation was started immediately as I write this blog it would finish at the beginning of August. We have also been promised a 6 month implementation period following the regulations and code of practice being published following approval through parliament. So if we work back from April 2022, this takes them being published at the end of September/beginning of October. I don’t know about you but 2 months to assess the consultation responses, finalise the regulations and code of practice and have these progress through parliament seems a bit tight!

I’ve also heard rumours of the DHSC asking for representations from those people who feel that in the current climate the implementation of LPS needs to be delayed further. I haven’t spoken to anyone who has made such representations so if you are one of these people I’d love to hear from you and find out your views on this. In my mind, if I remain positive that life will be without social distancing restrictions from the end of June, then it seems to me that the 6 months implementation period would be feasible. On the other hand, I had my second Covid-19 vaccine the other day and they were talking about further waves and further boosters in the autumn so who knows how much of our attention will still be focussed on Covid-19 at that time.

In November, we were updated with a big change to the role of the care home manager. It wasn’t mentioned in the key changes fact sheet that I commented on last time but in Section 19 of the Mental Capacity Amendment Act 2019 it sets out what many would consider to be a massive change in the operation of how deprivations of liberty are authorised. This is a process whereby a care home manager has the role of co-ordinating the necessary assessments and consultations and summarising this in a statement which is sent to the Responsible body to essentially sign off. You can see how this would fit in the more “streamlined” process of authorising a deprivation of liberty and would capitalise on some of the working relationships that care home managers have with their residents and family members. However, it is a huge additional workload for care home managers, especially those care homes that have many residents across multiple units or wards. If there are any care home managers out there who have lots of free time and feel like they can easily absorb this additional work in their day then please get in touch – I need the magic of your organisation and efficiency skills. In addition there are a number of concerns around the conflict of interests that this poses. Is a care home manager going to raise that clients are unhappy with their care arrangements when there is a risk of them losing income?

Recently, I had a discussion with an advocate who had come off a call with a care home manager. They were acting as a Paid Person’s Representative (PPR) under the current DoLS system and asking the care home manager if the client was showing signs of objection. The care home manager said no everything was fine. Fortunately, a member of staff was walking by and the advocate could hear on the phone them asking the manager who they were talking about. The member of staff said the client in question asks to go home every day. I am sure there are many care home managers who would not let this conflict impact on them but as a process which is supposed to be a safeguard for people - unless you can 100% guarantee this across the board - you risk people falling through the net.

However, this has now gone – at least for the immediate time. In the steering group summary from October 2020, it was noted that officials acknowledged that the role of the care home manager in this process has always been contentious. They explained that the Government has heard representations from across the sector, both for and against this role, and considered its potential very carefully. The Government has decided not to implement this aspect of the MCA in England, for now. They identified that the aims of capitalising on the involvement of people who know the person well remain valid but the time is not right and it will continue to be kept under review, especially in light of the consultation responses.

This is a particularly contentious element of the process for me and so I urge you all to engage in the consultation particularly on this point, I am concerned about how this process protects fully the human rights of those people who are most at risk of abuse and exclusion from decision making and in my mind the only way to protect those most at need is to have the safeguards across the board – but let me know what you think – I’m open to be convinced otherwise.

The minutes of the meeting also tell us what 5 of the 6 regulations are expected to cover:

  1. The Independent Mental Capacity Advocate (IMCA) role under LPS will be set out in regulations, amending existing regulations.
  2. Eligibility criteria and statutory training needed to be an Approved Mental Capacity Professional (AMCP). These regulations will also identify those who are excluded from this role because of a connection to a care home.
  3. Transitional arrangements for the LPS and DoLS to run alongside each other for the first year.
  4. Criteria for who is able to carry out assessments and determinations.
  5. Consequential regulations that will amend other pieces of legislation that will need updating.

At that time the policy decisions needed to inform drafting of the sixth set of regulations around monitoring and reporting of LPS in England were still being made but it is clear there is lots of work going on behind the scenes. In December 2020, we found out more information about the monitoring and reporting. In essence, this will be the remit of Care Quality Commission (CQC) and OFSTED depending on the age of the person deprived. They will be able to visit locations and meet with people deprived of their liberty as well as access records. The various responsible bodies will have to notify them of new, varied and renewed authorisations.

Interestingly, the steering group’s December meeting identified that the government is not planning on providing mandatory detailed training but a national strategy and sets of learning outcomes for various workforces and with example training that can be used and adapted by care providers. I’ll be honest this does worry me. Training when left to individuals can be very inconsistent based on the interpretations of those delivering it. Just think about where we are with the understanding of the Mental Capacity Act 2005 16 years on! To my mind, successful transition over to LPS requires training that is clear and consistent so we do not end up with postcode lotteries, there is risk of this already in expanding the supervisory body to various responsible bodies and I’m particularly concerned about approaches to the MCA in the medical profession. We have many disagreements over best interests’ decision making and the involvement of advocacy as it is for discharge planning and serious medical treatment. That being said, I am a bit of a control freak… does anyone else think this flexibility in training is positive?

A second fact sheet giving an overview of the process was also published. You can find it here. It basically highlights the following steps:

  • Notification - that the Responsible body needs to know that someone is potentially being deprived of their liberty and there will be a no wrong door principle – if it goes to the wrong responsible body they need to help get it to the right one.
  • Representation – first thing then is to consider whether there is an appropriate person or if an IMCA is needed and get those in place to start supporting the person right from the outset. I am so glad to see this highlighted as its own step so quickly in the process. It does mean that IMCA’s will be involved for longer than the standard report process under Section 39A of the MCA and we will need to manage this increase in resources and adapt to a different way of working but I’m keen to see what the regulations say about this!
  • Assessments – There will be 3 assessments, consultation and a pre authorisation review. There will be guidance about who and how the assessments and consultation need to be done. We also know that the pre authorisation review will need to be done by an AMCP where it is a complex case or there are signs the person does not wish to receive care where they are.
  • Authorisation – the first will be for up to 12 months and then following on from that they can be granted for up to 36 months. I’ll be honest I’m not sure how this applies to those who are already in the DoLS system – will this mean that they go straight into a 3 year cycle of authorisations? Personally, I think in order to ensure the new system is working as it should, it would be a better safeguard for everyone to have the first one for 12 months – but maybe I am being too cautious?
  • Reviews – there will be a programme of ongoing and regular reviews for all authorisations and those carried out in response to changes. In my experience, reviews don’t happen that often – many care home staff we speak to don’t realise they must notify the DoLS team of a change in restriction like bed rails and we have seen very few reviews carried out as a result of increased restrictions as a result of the pandemic, so again this is another potentially resource intensive element being introduced but absolutely a beneficial safeguard. It will be interesting to see guidance on how often these should occur.

My next blog will be looking at updates 3 and 4 which were quite juicy so look forward to that coming out soon – ish.